John Key and those GCSB questions

I confess: The GCSB bill has me going back and forth. So after considering the politics played by the PM this week I lay out my main qualms about the bill and seek your advice...

We've seen the best and worst of John Key this past week, all muddled up together, as he has tried to work his way through public debate on the GCSB reform bill. The Prime Minister has been patronising and politically astute, a classy communicator and a below-the-belt jiber.

On the weekend at the (underwhelming) National Party conference, he took a question from Campbell Live's Rebecca Wright about whether New Zealanders care about the GCSB bill. John Key said they care more about snapper.

National's political opponents howled that he was patronising New Zealanders and trivialising a vital issue of national security and privacy. Tosh. Key was patronising a reporter who was raining on his conference parade, but he was utterly correct. And the fact Key gets that New Zealanders care more about snapper than spying is a big part of why he's been wiping the floor with his opponents for so long.

Fishing is something that more than a million New Zealanders will do some time in the next six months; being spied on by the GCSB is something that may happen some day, almost certainly to someone else, and in fact has only happened 88 times in the past decade. Of course New Zealanders care more about something that actually affects their lives rather than a hypothetical.

That's not to say they shouldn't care more about the GCSB bill or to say it doesn't matter. But the PM was undisputedly right.

Key's problem was not what he said, but how he said it. The condescending tone looked dismissive and revealed a side of Key he usually keeps behind closed doors. But here's another reason Key has been such a dominant political force for two terms – he sucked it up, went on Campbell Live and delivered a clear defence of the GCSB reform.

Key doesn't let a problem fester, even a small one like that. He cleans up his own mess.

That's not to say Key is beyond reproach in the handling of this bill. Sure, he has tried to get it passed quickly and to minimise public scrutiny. (While I have all sorts of questions about how they're doing it, I applaud journalists such as the Campbell Live team for at least kicking against that and trying to engage the public in a crucial issue).

What's more his comments about New Zealanders traveling to Yemen for al-Qaeda training was either a serious slip of the tongue or political cynicism of the worst kind. If these people pose a credible threat, then his slip just alerted them to our surveillance of them and will drive them further underground. That's surely life-threatening.

If, more likely, it was a political ploy, then it is a betrayal of the confidential intelligence he has access to as Prime Minister. No leader who drops alarming comments like that knowing that he will never be able to back them up with actual intelligence gets to climb on his high horse and accuse John Campbell of fear-mongering.

On top of that, his slander of Rodney Harrison as Ahmed Zaoui's lawyer – implying that defending an innocent and wrongfully imprisoned man was anything less than good and even heroic – was appalling.

As for the bill itself, I agree with Key that the legislation around our spy agencies needs clarification. I agree that the suggestion we will all be spied on as a result of this reform is ridiculous. Yet I also realise around half a dozen agencies have the power to spy on me and other New Zealanders, and I accept some of that is necessary. I see some virtue in spy agencies being able to share resources from a purely practical perspective (but am unsure whether this bill just allows other agencies to share the GCSB's flash kit, or goes further). I agree that he cannot be expected to say which bits of technology these agencies using. I accept that only a few New Zealanders are likely to ever be affected by this law change.

But I still have qualms about the bill. While I'm no expert compared to some – so feel free to help me understand better in the comments – three stand out.

The first and foremost is one of principle over pragmatism. I'm a supporter of the power of the state to intervene in people's lives for the public good – from lines of the road to keep drivers from crashing into each other right up to CYFS workers taking new-born babes from mothers with a clear history of abuse and neglect.

Because it's vital that the state have such powers, it is all the more vital that it does not over-reach and claim powers that aren't needed. If it does, we risk a 'baby and bathwater' scenario where vital powers are lost as people lose faith in ones that aren't.

Along with the Law Society, I argue that the GCSB's powers should only be extended if there is an increased threat to be met. Some will say they're not being extended, they're just being allowed to do legally what they've being doing for years anyway. That still amounts to an extension – the alternative would be to enforce section 14 and say to the GCSB, "no spying on New Zealanders, that wasn't what you were created for".

Either way, there should be a very good reason to change the law to confirm this spying is hunky dory. Is there a clear and present danger to justify it? If so let us debate the balance of privacy v security. But I don't see the threat.

Is it needed to keep us safe from Mark Taylor, a couple of people smugglers and Keith Locke (more on him later)? Are the current systems failing us? Is our security so at risk as to warrant the sacrifice in privacy?

Hang on, you might say, a few paragraphs ago you were saying that hardly any New Zealanders will be affected... Now you're talking about all of us sacrificing priavacy for security? Well, this is my point. The practical implications are relatively minor, but the principled ones are not.

Allowing the state to invade the privacy of anyone going about their lawful business is something that should concern us all. We allow it up to a point; moving that point should always be done reluctantly and only when the need is urgent.

Key has urged us not to worry about the bill because the GCSB – in its legal fog of the past decade – only helped others spy on only 88 people, or one in every half-million New Zealanders. But again, it's a matter of principle, not numbers.

Were those 88 a genuine threat to New Zealand? Well, no arrests resulted, so at first blush, no. That doesn't mean they weren't worthy of some attention being paid, but it raises doubts.

Furthermore, it worries me when I read words such as this, from former MP Keith Locke.

"Journalists have asked if I was one of the 85 New Zealand citizens or residents who were spied upon under SIS warrants, which the Kitteridge report says were also spied on (illegally) by the Government Communications Security Bureau. That illegal spying ran from April 2003 to September 2012.

My first reaction was that I probably wasn’t one of those 85 people. Then I checked my SIS file (which I obtained from the agency in late 2008) and found that there were two SIS reports, dated 10 September 2003 and 24 September 2003, where the SIS was monitoring preparations for my trip to Sri Lanka in October 2003, a trip that was not at that stage public knowledge...

...It was not clear from the two SIS reports whether the SIS (and perhaps the GCSB) gained their information from spying on my communications, or those of NZ Tamils assisting me with the trip, or whether it was spying on both parties. Maybe the SIS interception warrants targeted the local Tamils helping me, and in the process they happened to intercept communications between us."

Was a sitting MP spied upon illegally? Or, more likely, were his communications caught up in spying on Tamils partaking in legal activism? Was it just the SIS or was the GCSB assisting? Was there a sufficient threat to warrant the monitoring of this trip by an elected representative?

You see, the numbers may be small, but the implications rather larger.

My second concern is oversight. It is good that two people – the PM and the Commissioner of Security Warrants, a former judge – will be required to sign warrants when the GCSB is asked for its help in domestic operations. (Actually, were warrants required for the 88? Can anyone answer that for me?). But I'd like to know how often such warrants are refused? Are they the safeguard they're presented as? Or a rubber-stamp? Is someone a little more sceptical than the PM and a PM's appointment required to hold the agencies to account?

And finally, I'm wary of the cultures in the organisations being given more power. As I've said, any extension of power should always be the smallest extention possible. One of the reasons why is that agencies over-reach and take a mile when given a legal inch. Consider the agencies we're empowering:

  • The GCSB, which clearly over-reached when it arranged the raid on Kim Dotcom.
  • The police were clearly caught up in post-9/11 hysteria when they raided the Ureweras rather than having a quiet word with Tame Iti and his mates.
  • The SIS have, more than just keeping files, been at least indirectly spying on the likes of Keith Locke, who's as much threat to New Zealand as my toaster. 
  • The NZDF has been operating for years under a manual which lists journalists and legal pressure groups as "subversion" threats.

Have these agencies earnt our trust? Do we make it easier for them to spy on New Zealanders when they seem to take their responsibilities so lightly? That worries me.

I know there are other issues about how much information is inadvertently captured and stored anyway, whether it's shared with foreign partners and the like – you can put me right on those in the comments, because I've gone on long enough.

As it stands, I'd be interested to know if you think I should be more worried about the bill, or whether the qualms I do have are nothing to fret over.